Clapper defends Internet actions

By JENNIFER EPSTEIN

06/06/2013 09:35 PM EDT

The Obama administration responded to reports Thursday that the National Security Agency monitored data from major internet companies with a defense of the practice, describing it as a key piece of its efforts to protect the country even as it declassified some information about the program.

“Information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats,” Director of National Intelligence James Clapper said in a statement based on an earlier release attributed to a senior administration official.

Reports Thursday from The Washington Post and The Guardian revealing that the government has monitored user data from companies including Apple, Google and Facebook “contain numerous inaccuracies,” Clapper said.

It’s important that Americans “understand the limits of this targeted counterterrorism program and the principles that govern its use,” he added in a separate statement explaining his order to declassify and release certain information related to phone surveillance conducted under the Foreign Intelligence Surveillance Act. (See below.)

“Extensive procedures” approved by the Foreign Intelligence Surveillance Court are used “to ensure that only non-U.S. persons outside the U.S. are targeted, and that minimize the acquisition, retention and dissemination of incidentally acquired information about U.S. persons,” Clapper said.

In addition to being authorized by a court, the program is also overseen by the Executive Branch and Congress, which last reauthorized the Foreign Intelligence Surveillance Act less than six months ago after what Clapper described as “extensive hearings and debate.”

The government can only use Section 702 of the law, the piece used to justify the so-called PRISM program, “to acquire foreign intelligence information, which is specifically, and narrowly, defined in the Foreign Intelligence Surveillance Act,” a senior administration official said in a piece of the initial statement not attributed to Clapper. “This requirement applies across the board, regardless of the nationality of the target.”

Leaking of information about PRISM – which Clapper described as an “important and entirely legal program” – is, he said, “reprehensible and risks important protections for the security of Americans.”

In his second statement, Clapper added that the unauthorized disclosure of a top secret document “threatens potentially long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our nation.”

Publicly discussing programs like PRISM and the tracking of phone records “will have an impact on the behavior of our adversaries and make it more difficult for us to understand their intentions,” he said. “Surveillance programs like this one are consistently subject to safeguards that are designed to strike the appropriate balance between national security interests and civil liberties and privacy concerns.”

The information being declassified and released by the DNI, described by Clapper as “important facts explain[ing] the purpose and limitations of the program”:

There is a robust legal regime in place governing all activities conducted pursuant to the Foreign Intelligence Surveillance Act, which ensures that those activities comply with the Constitution and laws and appropriately protect privacy and civil liberties. The program at issue here is conducted under authority granted by Congress and is authorized by the Foreign Intelligence Surveillance Court (FISC). By statute, the Court is empowered to determine the legality of the program.

By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization. Only specially cleared counterterrorism personnel specifically trained in the Court-approved procedures may even access the records.

All information that is acquired under this order is subject to strict restrictions on handling and is overseen by the Department of Justice and the FISA Court. Only a very small fraction of the records are ever reviewed because the vast majority of the data is not responsive to any terrorism-related query.

The Court reviews the program approximately every 90 days. DOJ conducts rigorous oversight of the handling of the data received to ensure the applicable restrictions are followed. In addition, DOJ and ODNI regularly review the program implementation to ensure it continues to comply with the law.

The Patriot Act was signed into law in October 2001 and included authority to compel production of business records and other tangible things relevant to an authorized national security investigation with the approval of the FISC. This provision has subsequently been reauthorized over the course of two Administrations – in 2006 and in 2011. It has been an important investigative tool that has been used over the course of two Administrations, with the authorization and oversight of the FISC and the Congress.